Parents fight child porn threats against “sexting” teens

Backed by the ACLU, a group of Pennsylvania parents is suing to block an …

As teen flirtation and sexual experimentation enter the digital age, man-bites-dog stories about adolescent exhibitionists being charged as kiddie pornographers may soon seem no more newsworthy than reports of cops breaking up a kegger. But one group of Pennsylvania parents is pretty sure their daughters aren't sex offenders—and with the help of the American Civil Liberties Union, they're suing to force a zealous county district attorney to back off.

In what's becoming a familiar pattern, Tunkhannock School District officials confiscated a student's cell phone late last year, and discovered an array of photographs of local girls in various states of undress—photos that male students had apparently been trading and collecting more avidly than Pok�mon cards. Duly horrified, Wyoming County District Attorney George Skumanick decided he had to protect these young women... by threatening to prosecute them for "sexual abuse of children."

In a letter sent to parents in February, Skumanick declared that both the boys caught swapping the photos and the girls who'd been photographed would have to submit to a reeducation program or risk being charged with a felony. In addition to accepting six months probation, the students would have to pony up $100 for a five-week, ten-hour program that would, among other things, help them "gain an understanding of what it means to be a girl in today's society." The parents of most of the 20 or so students involved readily assented.

But the parents of Marissa Miller and Grace Kelly were less than scandalized when they saw the snapshot for which their daughters had posed: both were shown wearing opaque white bras no more revealing than a bikini top—one on the phone, the other flashing a peace sign. Skumanick averred that it was nevertheless child pornography because the girls were posed "provocatively." The pseudonymous Nancy Roe was a bit more exposed in her photo, which showed her fresh from the shower with a towel wrapped around her torso, below her breasts. But her mother doubted whether a bit of nudity was all it took to make a picture "pornographic."

The ACLU shared the parents' skepticism—though they've had to rely on second-hand descriptions so far. Skumanick won't show the photos to anybody else, including the parents' lawyers, for fear of becoming a kiddie-porn "distributor" himself.

In a lawsuit filed Wednesday on behalf of the mothers of the three girls, the civil liberties group argues that photos merely showing minors in their underwear or topless so clearly fall outside the statutory definition of "pornography" that Skumanick could not possibly have any "reasonable expectation of obtaining a conviction." Rather, the mothers charge that Skumanick is using a frivolous threat of prosecution to bully parents into accepting his childrearing "assistance." The plaintiffs are asking a federal district court to issue declaratory ruling that the photos are protected speech, not obscenity, and to enjoin Skumanick's threats as a violation of their parental rights.

Though the core of the ACLU's argument is simply that the photos don't fit any reasonable definition of porn, the filing also notes that there's something perverse about planning to charge girls as accomplices in the creation of kiddie porn for the "crime" of allowing themselves to be photographed. While some similar cases involved students who sent pictures of themselves to boyfriends, it's not clear in this case whether the girls in the photos ever themselves possessed or distributed the pictures.

Perhaps understandably, the ACLU filing doesn't broach the harder question of whether it makes any sense to wield laws designed to protect children from exploitative pedophiles against adolescents sharing racy photos with each other. Recent surveys show that some 20 percent of teens have done precisely that, either via the Internet or cell-phone cams.

The courts have traditionally recognized several legal justifications for criminalizing the possession and distribution—as opposed to the creation—of child porn. There's the state's interest in protecting the minor depicted from further exposure, of course, and the desire to deprive pedophiles of images that can be shown to future victims in order to weaken their resistance. But at the core of the Supreme Court ruling that upheld child porn laws against a First Amendment challenge, New York v. Ferber, was the assumption that child porn would nearly always be the byproduct of an initial act of exploitation of a child by an adult. Criminalizing possession of the product was meant to undermine the market for its creation.

In a more recent case, Ashcroft v. Free Speech Coalition, the court found that "virtual" child porn—that is, the sort created without the use of actual children—could not be criminalized consistent with the First Amendment. While "sexting" obviously does involve actual minors, the grounds on which the Court distinguished its holding in this case from Ferber seem relevant. In Ferber, the majority found, the "production of the work, not its content, was the target of the statute." Distribution or possession of the work was subject to penalty because there remained "a proximate link to the crime from which it came." When teens produce the work themselves—either alone or, depending on state law, with a partner roughly the same age—there may not be a distinct "crime from which it came."

It's easy enough to understand the desire to deter "sexting": when those images do get into the wild, as they all too easily do, they tend to spread with incredible speed, making an immature lapse of judgment a potentially permanent burden. On the other hand, the seven-year prison term that would accompany a conviction seems fairly burdensome too. And the girls would still find their photos plastered on the Internet: on Pennsylvania's registered sex offenders website, along with residence and employment data.

An initial hearing in the suit is scheduled for Thursday afternoon. It remains to be seen whether the public attention the case is garnering will affect Skumanick's bid for reelection in May.